Robb v. Dobrinski
| Decision Date | 03 September 1904 |
| Citation | 78 P. 101,1904 OK 119,14 Okla. 563 |
| Parties | JAMES C. ROBB, HENRY KLEIN AND FREDERICK HAFFNER, v. MICHAEL DOBRINSKI. |
| Court | Oklahoma Supreme Court |
¶0 1. REPLEVIN--Plaintiff Must Recover on Strength of His Own Title. The plaintiff in a replevin action must recover on the strength of his own title or right of possession, and not on the weakness of his adversary's title or right of possession, and the defendant may defeat the action by showing title even in a third person.
2. SAME--Proof Necessary. The plaintiff in a replevin action must prove the following facts: (1) That he is the owner of the property, or has a special interest therein; (2) That he is entitled to the immediate possession thereof; (3) That the property is wrongfully detained by the defendant. And the burden of proof is on the plaintiff to sustain these material averments of his petition.
3. SAME--Defendant Must be in Actual or Constructive Possession of the Property. An action of replevin cannot be maintained against one who is not in the actual or constructive possession of the property at the commencement of the action.
STATEMENT OF FACTS.
This was an action in replevin brought by Michael Dobrinski against James C. Robb, Henry Klein and Frederick Haffner, to recover the possession of about seventeen hundred bushels of wheat. The material averments in the petition are as follows: That on or about the first day of January, 1902, the defendant Frederick Haffner did take, steal and carry away about seventeen hundred bushels of wheat belonging to the plaintiff. That said Haffner took said wheat to the defendants James C. Robb and Henry Klein in the town of Hitchcock, Blaine county, Oklahoma, and delivered the same to them. That said defendants Henry Klein and James C. Robb took said wheat from the defendant Frederick Haffner with full knowledge of the manner in which he got possession of the same, and with full knowledge that it was plaintiff's wheat. That the plaintiff demanded the wheat from the defendants James C. Robb and Henry Klein, in whose possession it now is, and that the said defendants refused and neglected to deliver the wheat to the plaintiff. That the value of said wheat is fourteen hundred dollars, and that the plaintiff has been damaged in the sum of five hundred dollars for the wrongful detention of said wheat, and that the said plaintiff is entitled to the immediate possession thereof.
To this petition each of the defendants filed a separate answer, denying all the material allegations contained in said petition.
Upon the issues thus joined, the cause was tried to a jury and a verdict returned in favor of the plaintiff and against all of the defendants, for the possession of 1687 bushels of wheat of the value of $ 1197.77, and in addition thereto the jury assessed the damages for the detention of said wheat at the sum of $ 400.00. Judgment was rendered by the court in accordance with the verdict of the jury. A motion for a new trial was duly filed by the defendants, which, on consideration by the court, was overruled, and an exception saved. Defendants bring the case here by case made for review.
Error from the District Court of Blaine County; before James K. Beauchamp, Trial Judge.
P. S. Nagle and W. A. McCartney, for plaintiffs in error.
E. L. Hotchkiss and Doyle & Berge, for defendant in error.
¶1 The first error assigned and argued by plaintiffs in error is that the petition does not state facts sufficient to constitute a cause of action, and that therefore the court erred in overruling the objection of the defendants to the introduction of evidence. We think this objection was well taken as to the defendant Haffner. The petition fails to state facts sufficient to constitute a cause of action against him. The petition does not allege that the wheat in controversy was in the possession of Haffner, or under his control. On the contrary, it alleges that he had delivered the wheat to the defendants Klein and Robb prior to the commencement of the action, and that the plaintiff demanded the wheat from the defendants James C. Robb and Henry Klein, in whose possession it was at that time. The plaintiff having alleged that the property was in the possession of the defendants Robb and Klein at the time the demand was made, and at the commencement of the action, it follows that Haffner could not wrongfully detain the same, and the petition was fatally defective as to him, and therefore it was error to overrule the objection as to the sufficiency of the petition as to him. But as to the other defendants, we are of the opinion that the petition states facts sufficient to constitute a cause of action, and the objection to the introduction of testimony as to them, was properly overruled.
¶2 The plaintiffs in error complain that the court erred in refusing to give the following instruction offered on behalf of the defendants:
"You are instructed that under the pleadings in this case, the plaintiff in this action must recover upon the strength of his own title, and not upon the weakness of the title of the defendants; and if you find from the evidence that the title to the wheat in controversy, at the beginning of this action, was in any other person than the plaintiff, then the plaintiff is not entitled to recover, and your verdict must be for the defendants."
¶3 The defendants claimed that they were the owners of the wheat, and entitled to the possession thereof by virtue of the purchase of the wheat by Haffner from Dobrinski on September 4, 1901. Haffner testified that at the time he made said agreement he purchased the farm and all of Dobrinski's wheat that was then stored on the farm. That the purchase price of the farm was $ 2900.00, and that they had agreed that there was 1668 bushels of wheat in the granaries at that time, and that he, Haffner, was to pay Dobrinski fifty-five cents a bushel for said wheat, the wheat to be paid for on January 1, 1902, at which time Dobrinski was to execute to Haffner a deed to the farm. That pursuant to this oral agreement, Haffner, on the following day, took possession of the farm, and the wheat in the granaries, and soon thereafter commenced to cultivate the land, and to sow another crop of wheat. That during the fall of 1901 he sold to the defendant Henry Klein the wheat that he had bought from Dobrinski, and subsequently Henry Klein sold and delivered said wheat to the defendant James C. Robb. Haffner is corroborated by a number of witnesses, who testify that Dobrinski had told them that he had sold his farm and wheat to Haffner.
¶4 It will thus be seen that Haffner claimed his title to the wheat by virtue of his purchase, in good faith, from the plaintiff; and in these circumstances, and upon defendants' theory of the case, we think the above instruction not only correctly states the law as an abstract proposition, but was certainly applicable to the case under consideration, and as this point was not covered by any other instruction, this charge should have been given to the jury.
¶5 The law seems to be well settled that the plaintiff in a replevin action must recover on the strength of his own title or right of possession, and not on the weakness of his adversary's; and the defendant may defeat the action by showing title even in a third person. (Am. Dig., Century Edition, c. 2104).
¶6 In Hacker v. Munroe, 56 Ill. App. 532, it was held that: "In replevin, where the right of property is in issue, the burden is upon plaintiff to show his right to the possession of the property, and he can recover only on the strength of his own title;...
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